“刑九”型危险驾驶罪认定问题探析

发布时间：2018-07-03 17:07

本文选题：刑九型危险驾驶罪 + 校车　；参考：《中央民族大学》2017年硕士论文

【摘要】：校车事故、客运事故和危险化学品运输事故在近些年日益引起社会关注,立法者在刑法修改中表现出严厉打击的态度,旨在扩大危险驾驶罪的犯罪圈,提前防控风险。"刑九"型危险驾驶罪是《刑法修正案(九)》中增设的新型危险驾驶罪,是我国危险驾驶罪的一种。对其中包含的问题进行认定,离不开司法人员的论证技巧和刑法解释能力,更需要学界探究法条用语的含义,揭示其应然判断。本论文在结构上由六部分组成。在引言部分,笔者介绍了论文选题之研究现状、选题的意义、研究方法和论文创新点。本文第一章为"刑九"型危险驾驶罪的概述,想探究"刑九"型危险驾驶罪认定问题,有必要简单介绍该类型危险驾驶罪的立法沿革和犯罪构成,这便于读者对本罪的主客观要素及探究价值有一个清晰的把握。为回应社会关切,《刑法修正案(九)》用列举式的方法在原有"刑八"型危险驾驶罪的基础上,增加了新型危险驾驶罪,即"刑九"型危险驾驶罪。第二章探究了 "刑九"型危险驾驶罪认定中的"校车"问题。笔者认为用于接送接受义务教育的学生的小学校车和初中校车如果出现严重超载或者严重超速的情况,肯定是"刑九"型危险驾驶罪中的"校车";认为用于接送幼儿园学生和高中学生上下学的校车如果出现严重超载或者严重超速的情况,也应该是"刑九"型危险驾驶罪中的"校车";认为用于接送接受高等教育的学生的校车如果出现严重超载或者严重超速的情况,也应该是"刑九"型危险驾驶罪中的"校车",这是我国《宪法》的规定在刑法认定中的必然反映;认为"黑校车"如果出现严重超载或者严重超速的情况,也应当是"刑九"型危险驾驶罪中的"校车",这样认定没有超出国民的预测可能性;认为"空校车"即使出现"严重超速"的情况也不应属于"刑九"型危险驾驶罪中的"校车",因为这不符合《刑法修正案(九)》的立法目的。第三章探究了 "刑九"型危险驾驶罪认定中的"旅客运输"问题。"班车运输"、"包车运输"、"旅游车运输"是现实中常见的运输类型,"黑车运输"若出现严重超载或超速情况,也应该是"刑九"型危险驾驶罪中的"旅客运输",这样认定没有超出国民的预测可能性;"公交车运输" 一般不可能出现严重超速的情况,即使出现了严重超载的情况,也不应该属于"刑九"型危险驾驶罪中的"旅客运输",这是基于"宽严相济"的刑事政策的考虑。第四章探究了 "刑九"型危险驾驶罪认定中所涉及的其他一些认定问题。其中"严重超载或者严重超速"、"违规运输危险化学品"、"依照前款的规定处罚"涉及到行政法与刑法之间的交叉,在法律适用中是需要着重解决的几个问题。"刑九"型危险驾驶罪在司法实践中存在着法条语义模糊,入罪标准、量刑标准不明确及以罚代刑等困境,在尚无司法解释的情况下,本文希望通过探究为学界和实务界在认定方面提供有利借鉴。
[Abstract]:School bus accidents, passenger traffic accidents and accidents involving the transportation of dangerous chemicals have increasingly aroused public concern in recent years. Legislators have shown a serious attitude of cracking down on criminal law amendments in order to expand the criminal circle of dangerous driving crimes and prevent and control risks ahead of time. " The crime of dangerous driving is a new type of crime of dangerous driving, which is added in the Amendment of Criminal Law (9), and is a kind of crime of dangerous driving in our country. The identification of the problems involved cannot be separated from judicial personnel's argumentation skills and criminal law interpretation ability. It is also necessary for the academic circles to explore the meaning of legal terms and reveal their supposed judgment. This paper is composed of six parts in structure. In the preface, the author introduces the research status, significance, research methods and innovation of the thesis. The first chapter of this paper is an overview of the crime of "nine crimes" of dangerous driving. It is necessary to briefly introduce the legislative evolution and the constitution of the crime of dangerous driving in order to probe into the problem of the identification of the crime of dangerous driving of the type of "punishment nine". It is convenient for readers to have a clear grasp of the subjective and objective elements of the crime and the value of inquiry. In order to respond to the social concern, the Criminal Law Amendment (9) adds a new type of dangerous driving crime, that is, "9" type dangerous driving crime, on the basis of the original "criminal eight" type dangerous driving crime. The second chapter explores the problem of school bus in the crime of dangerous driving. The author believes that if the primary school bus and the junior high school bus used to transport the students receiving compulsory education have serious overloading or serious speeding, It is definitely a "school bus" in the crime of "criminal nine" dangerous driving; it is believed that if the school bus used to transport kindergarten students and high school students to and from school is seriously overloaded or severely overspeed, It should also be a "school bus" in the crime of "nine penalties" for dangerous driving. It is believed that if the school bus used to transport students to and from higher education is seriously overloaded or overspeed, It should also be a "school bus" in the crime of "criminal nine" dangerous driving, which is an inevitable reflection of the provisions of the Constitution in the criminal law; it is believed that "black school bus" if there is serious overloading or serious speeding, It should also be the "school bus" in the crime of "criminal nine" dangerous driving, so that it does not exceed the forecast possibility of the people; It is considered that "school bus" should not belong to "school bus" in the crime of "nine" dangerous driving, even if "serious overspeed" occurs, because it does not accord with the legislative purpose of "Amendment (IX)" of Criminal Law. The third chapter explores the problem of passenger transport in the determination of the crime of dangerous driving. "shuttle transportation", "chartered transport", "tourist transport" are common types of transport in reality, "black car transport" occurs serious overloading or speeding, It should also be "passenger transport" in the crime of "nine penalties" for dangerous driving, so as to determine that it does not exceed the forecast possibility of the people; "bus transportation" is generally not likely to have serious speeding, even if there is serious overloading. Nor should it belong to the "passenger transport" in the crime of "nine" dangerous driving, which is based on the consideration of the criminal policy of "combining leniency and severity". Chapter four explores some other problems involved in the determination of the crime of dangerous driving. Among them, "serious overloading or serious speeding", "illegal transportation of dangerous chemicals" and "punishment in accordance with the provisions of the preceding paragraph" involve the intersection of administrative law and criminal law, and are several problems to be solved in the application of the law. " In the judicial practice, there are many difficulties in the crime of dangerous driving, such as the ambiguity of the meaning of the law, the standard of incrimination, the unclear standard of sentencing and the substitution of punishment for punishment, and so on. In the absence of judicial explanation, This article hopes to provide the beneficial reference for the academic circles and the practical circles in the confirmation aspect through the inquiry.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3

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